It’s important to understand that the Executive Orders of President Trump have not been drafted in a vacuum. These orders are part of a larger effort to not only curb immigration, but to also curb embedded constitutional and civil rights.
Kris Kobach, the Kansas Secretary of State, who has been advising Trump, has worked on Arizona’s infamous SB-1070 and has worked with various nativist groups to attack minority groups and prevent them from coming to the US. It should be clear that these Executive Orders are the work of a few individuals with a nationalist mindset, taking advantage of the broad powers that the President has with regard to safeguarding our borders, using national security as a smoke screen.
The reason why the Administration chose immigration as a starting point for unleashing its executive powers is because it’s low hanging fruit, not just from a political point of view, but as explained below, also from a legal perspective.
Kobach stated on PBS this week, that “foreigners do not have a constitutional right to enter this country. It’s a privilege, not a right”. This notion is the foundation on which this entire new attitude is built and the American public mostly agrees with this simplified version of immigration law.
Technically it’s not an incorrect statement, however, numerous constitutional protections do apply to immigrants and particularly permanent residents. It’s interesting to note that the Administration uses words such as foreigner, visitor or traveler to explain the controversial ban and to give the impression that many of the individuals being banned do not have significant ties to the United States. This approach minimizes the major constitutional problems with implementing such a broad ban, as well as the ban’s disastrous consequences. Specifically, in a tweet on February 2 the President referred to Syrian refugees in Australia as “illegal immigrants”, which is a nonsensical and illogical classification and this careless approach prevents any intelligent discussion about any subject.
With regard to other Orders dealing with detention and arrests, the Administration refers to the same people described above as aliens. Therefore, I believe it’s all a ploy to further gut our institutional framework and when discussing these Executive Orders, we need to be aware that we’re not falling into the trap of prioritizing one over the other. Moreover, there are more Orders coming very soon. These Orders may affect DACA, Parole in Place, the provisional waiver program, the H-1B visa and expanded scrutiny for visas. These Orders would be the start of a complete erosion of the entire immigration system.
The President is able to sign these Executive Orders so quickly in the field of immigration due to the fact that he has been given broad powers by the Immigration and Nationality Act (“INA”) to do so. In contrast to any other type of practice, such as criminal law, civil rights, education, environment or equal rights, the President has the power without an act of Congress to immediately interrupt all rights of “aliens”. INA Sec. 212(f) states that “whenever the President finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Historically, the Presidents have used executive proclamations to bar entry to persons as well. Therefore this “ban” is not unique. For instance in 1999, the President suspended visa entry to Yugoslavian officials responsible for repression in Kosovo, Proclamation 7249, 64 FR 62561, (Nov. 12 1999). There have been numerous of these proclamations prior and after. However, these Executive Orders have always been narrowly tailored and always in response to a specific incident.
Kobach refers to previous laws and regulations that were drafted and implemented to target specific classes of aliens and refuse them entry to the United States as evidence that the United States has a long history of banning certain people. The earliest laws that he refers to are the Alien and Sedition Acts of 1798. These were four sets of laws. However, he fails to mention that three of the Acts were immediately repealed under Thomas Jefferson and the remaining Act, the Alien Enemies Act, was later used to imprison Japanese Americans in internment camps, for which President Reagan and the 100th Congress had to apologize and offer restitution in the Civil Liberties Act of 1988.
Kobach, Spicer and Priebus are not wrong in saying that applying for admission to the United States is not a constitutional right. However, the Administration uses this phrase to justify trampling on the constitutional, civil and human rights of people who are involved in an immigration or non-immigration process. Even though applying for a benefit may not result in actually receiving the benefit, an individual still has certain rights that shall not and cannot be harmed. One can make a comparison to applying for a benefit under zoning law regulations or any other type of Administrative law.
These certain rights are Due Process Rights, Rights under the Convention of Torture, Rights to Family Unity, Rights under the Geneva Convention, 14th Amendment Rights and so on.
With these Executive Orders, persons are being denied these rights and as a direct consequence irreparable harm is being caused on not only “aliens’, but also on US citizens and our community as a whole.
Understandably, the public has focused on the “travel ban” from the seven identified countries, since it immediately created chaos, confusion and irreparable harm, but the other Executive Orders expanding the definition of “arriving aliens”, expanding the prospect of endless detention of non-criminals, cutting off funding to non-compliant municipalities, retracting DACA and increasing enforcement (including the border wall) are more harmful to the people who it affects directly, but potentially also jeopardize the safety and well-being of all people in our diverse communities.
I want to mention that in addition to the President, the Attorney General, the Secretary of State and the Secretary of Homeland Security are given wide latitude in immigration, deportation, detention and visa matters (INA Sec. 103). Considering the appointed Secretaries and the nominee for AG, these Executive Orders should be viewed in the perspective of a larger effort to restrict the civil liberties of all people involved, such as asylum seekers in or out of detention, visa applicants, applicants for citizenship, undocumented workers, green card holders with a minor criminal record, etc.
Moreover, the Immigration Courts (EOIR) fall directly under the jurisdiction of the Attorney General. The Court is not part of the judicial branch. An immigration judge is merely an adjudicator working for the Executive. With the new AG it can be expected that further tightening will be implemented. As an example, this may include new regulations on prolonged detention, which is now curtailed by the so-called “Rodriguez bond”, which is available to those who have been detained for more than six months. The AG may soon try to overturn this. He won’t need an executive order.
As a result, the Bar needs to understand that the only recourse would be through the judicial system, which in this case is NOT the Immigration Court, but rather District Court and the Circuit of Appeals.
Final comment, when Congress confirms Judge Gorsuch to the Supreme Court, the judicial branch it is unknown if he’ll look favorably on extending Presidential powers.
We need to be aware that we’re being subjected to an unprecedented assault of executive power and that Congress won’t be able to halt this onslaught. We and “We the People” are the final defense.